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The 11th U.S. Circuit Court of Appeals in Atlanta has issued a ruling that, if left to stand, redefines copyright law to apply in this new era of technology. A three-judge panel last week ruled that National Geographic violated the law when it reproduced on a CD-ROM magazines that contained Miami photographer Jerry Greenberg’s work without getting his permission. Greenberg had been selling his photos to National Geographic for nearly 40 years. His lawyer, Norman Davis of Steel Hector & Davis in Miami, had argued that his client’s contract included a copyright clause that stated that after publication, all rights to his photos reverted to him. But in 1997, the National Geographic Society began selling a set of 30 CD-ROM disks containing 108 years of its magazine, which included four of Greenberg’s photos. In 1997, Greenberg filed suit in U.S. District Court in Miami against the National Geographic Society and MindScape Inc., the company responsible for producing the CD-ROM. He argued copyright infringement. Davis claimed that because National Geographic had created a new anthology of work, it wasn’t simply a reprint of existing work. Attorneys for National Geographic argued that the reproduction was no different from bound volumes of the National Geographic or copies on microfilm and microfiche. U.S. District Judge Joan Lenard in Miami granted summary judgment in favor of National Geographic. The case was appealed to the 11th U.S. Circuit with amicus briefs filed on behalf of several publishing giants, including Gannett Co., The New York Times Co., the Magazine Publishers of America, and the Newspaper Association of America. On Thursday, the 11th Circuit, in a strongly worded 20-page ruling, found that the CD-ROM was not “merely a revision of the prior collective work, but instead constitutes a new collective work.” “What this says is that publishers will have to be careful about how they reuse materials from earlier publications when they don’t own the copyrights,” said Davis. National Geographic‘s attorney Robert Sugarman of Weil Gotshal & Manges in New York, disagrees with the court’s rationale. “The copyright law was designed to be media neutral,” he said. “This opinion basically eviscerates that media neutrality.” The appellate court remanded the case to Judge Lenard and ordered that she determine attorneys’ fees and damages as well as whatever injunctive relief she deems appropriate. The appellate court, however, was quick to mention that when considering injunctive relief, the lower court should consider alternatives such as license fees, “in lieu of foreclosing the public’s computer-aided access to this educational and entertaining work.”

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